Matt Foster and Dhara Shah write for Family Law Journal on child abduction: theory versus reality

Matt Foster, Associate, and Dhara Shah, Associate, write for Family Law Journal on the topic of child abduction. Read their article first published in the June edition of Family Law Journal below:

In the field of child abduction, more so than any other area of family law, what should happen as a matter of law is often quite different to what may happen in practice. Many of the legal instruments in place, domestic and international, lack teeth or do not always work as intended. When the stakes are so high, practitioners simply cannot afford to follow the law blindly in the hope that it will afford their clients adequate protection. Instead, practitioners must be aware of the real-world risks which their clients (and their client’s children) face and know how to mitigate against them.

The legal landscape

Practitioners frequently advise parents who are living in England and Wales (‘England’) with their children, who fear that the other parent (the ‘Abductor’) will take the children to another jurisdiction (‘Country X’) and not return them. It is on this fact pattern which this article focuses.

There is a legislative patchwork in place, comprising domestic and international law, to address this issue.

1. First, there are the remedies under the law of England and Wales (‘English law’) that can prevent child abduction, such as orders that preclude the Abductor from leaving England with the children or orders that alert the border authorities so they know a child should not be permitted to leave the country. The powers available to the court under the Children Act 1989 as well as the court’s inherent jurisdiction (such as wardship) are very wide. Moreover, under English law it is a criminal offence under the Child Abduction Act 1984 for a parent to relocate permanently to another country with the child without the consent of the other parent, with a maximum custodial sentence of seven years. The vast majority of the English Court’s powers will only apply in respect of a child where the parent (or other adult) in question holds parental responsibility for the child. Practitioners should therefore be alive to issues of parental responsibility in the context of their specific cases (‘parent’ is used as shorthand in this article).
2. Second, there are orders that can be sought in Country X which will result in the swift return of the abducted child to England. The primary instrument for this is the 1980 Hague Convention, which (in very general terms) is an international convention that assumes that the summary return of a child to their state of habitual residence is in their best interests and facilitates an order accordingly and within 6 weeks (unless a defence is established successfully). Countries that have ratified this Convention should, therefore, make an order for the return
   of the child in line with the 1980 Hague Convention.
3. Third, there are English law remedies that can order the return of the child from Country X. Once such orders have been made, they can be enforced under the 1996 Hague Convention (meaning Country X, provided it has ratified the Convention, will recognise the order of the English Court and therefore facilitate the return of the child to England). Although the 1996 Hague Convention can apply to similar cases as the 1980 Hague Convention, it is fundamentally different and concerns the recognition and enforcement of orders relating to children in different states. So whilst it does not primarily concern abduction, it can be used to try to enforce an order for the return of an abducted child.

So far, so good. Clients will surely be relieved to learn from their advisors of the wide range of legal tools at their disposal to prevent or remedy an abduction.

Except that those tools do not always work. In certain circumstances, the legal remedies listed above are next to useless. And those circumstances are not theoretical or even rare – they are relatively commonplace.

There are two overarching themes which explain why this is the case. The first is that our legal system rests on the assumption that individuals will not breach court orders, primarily for fear of the consequences if they do. However, in the context of child abduction that assumption cannot be sustained. Where the very act that the order is trying to prevent involves the offending party leaving the jurisdiction permanently, it is axiomatic that the consequences of breaching that order will be limited and, in some circumstances, non-existent. The Abductor will often have no meaningful ties to England and will have no wish to return post-abduction. Unless Country X is a state that is going to entertain a cross-border prosecution, then the Abductor faces no meaningful consequences as a result of the breach.

The second is that child abduction is, by its nature, an international issue. With that come issues of comity and politics. If Country X is not a party to either of the Hague Conventions mentioned above, then the prospect of securing a return is slim, regardless of what the English Court says. Even if Country X has ratified one or both Hague Conventions, that does not mean that they will be implemented properly or in line with how they would be treated in England. There is no supra-national body controlling the application of the Conventions – each individual state is responsible for its own interpretation and implementation. In some cases, this arises from a genuine difference in interpretation. In others, however, the foreign courts simply do not implement the Conventions properly for political reasons. Practitioners will all know of 1980 and/or 1996 Hauge Convention countries where in practice the Conventions are not honoured and where a return to England is incredibly rare as a result.

Consider a family from Country X who relocate to England, with a view to this being permanent. Although they do not immediately bring many assets into the jurisdiction and only rent a property, they start laying roots and the children spend a few years in English schools and become settled. However the parents’ relationship soon breaks down and Parent 1 says they want to return to Country X with the children. Country X has ratified the 1980 Hague Convention but not the 1996 Hague Convention. Parent 2 discovers the plans of Parent 1 and manages to secure a prohibited steps order from the English Court preventing Parent 1 from relocating with the children. Parent 1 decides to do so anyway and takes the children, without notice, back to Country X, in breach of the order. Parent 2 reports Parent 1 to the police and begins taking steps via solicitors to obtain the return of the children. They soon discover that the breach of the prohibited steps order carries no real consequences as Parent 1 is not going to return to the jurisdiction and Country X is not going to entertain an extradition request. Parent 2 considers seeking a return order in the English Court, but is told that in practice it will be useless as Country X has not ratified the 1996 Hague Convention so will not recognise the English order. That means that Parent 2’s only recourse is the 1980 Hague Convention, so they start proceedings in Country X for a return order. However, although their English solicitor has advised that there are grounds for a return order based on their assessment, the court in Country X takes a very different approach and refuses the application for a return order. Parent 2 is subsequently told that, in practice, the court in Country X is extremely unlikely to make a return order where both children and Parent 1 are returning citizens of Country X.

Despite the raft of legal options available to Parent 2, none of them will work in this scenario. What should happen as a matter of law is very different to what has actually happened in practice. There are many variations on this fact pattern, where legal remedies are available to safeguard against or remedy an abduction, but which in practice are worthless.

There are two over-arching learning points from this. The first is that prevention is better than cure. Once the Abductor has left England with the children it can be almost impossible to secure their return. In such cases, energies must be focussed on preventing the children from leaving the jurisdiction in the first place as that is the only stage where the concerned parent stands a chance.

The second is that the identity of Country X is crucial. Not all states have ratified one or both of the Hague Conventions and not all states apply them in the same manner. This same applies for rules on international travel and criminal prosecutions. This needs to be thoroughly explored in order to ascertain the consequences if an abduction does take place.

Bearing the above in mind, the rest of this article explores the practical issues that must be considered during three distinct phases of a child abduction case:

1. Prevention: when an abduction risk is present, but not imminent.
2. Imminent risk: when there is an imminent risk of abduction.
3. After the event: when the abduction has
   taken place.

(1) Prevention

Analysis

Before preventative measures are taken, it is important to undertake a thorough analysis of Country X so the risk can be profiled accurately.

Practitioners should:

Ascertain the status of Country X with regard to both Hague Conventions. Practitioners should ensure they can ‘read’ the Hague status tables properly. The starting point is the status of the Convention in Country X.

• Membership of the HCCH (the Hague Convention on Private International Law) means nothing in practice and has no bearing on whether a state has taken steps in relation to any of the specific Hague Conventions.
• Signature: This is the first step and a sign of intent on behalf of the
  state, but does not mean that the Convention is actually in force.
• Ratification / Accession: This is the second step, which signifies approval by the domestic legislature and an intention to be bound to the terms of the Convention. However that does not necessarily mean that the relevant legislation has been enacted or implemented.
• Domestic legislation implemented: This is the best case scenario, meaning the terms of the Convention have actually been implemented into domestic law.

Practitioners should also be aware of ‘reservations’ and ‘declarations’. A state may have implemented the Conventions by domestic legislation but with reservations, which could make all the difference in practice depending on the facts of a particular case.

• Take advice from a reputable local lawyer to ascertain how the Conventions (assuming they have been ratified) are actually treated in practice in Country X. Are they implemented properly? Are the correct procedures followed? Do not rely on generic advice. Give your local counsel the specific facts of the case as that can make a difference. For example (and anecdotally), certain states appear to treat abducting mothers differently from abducting fathers so relying on general advice or past experience of a state will not be enough. Practitioners should also consider how Country X defines a parent and how this compares with the English concept of parental responsibility.
• Take local advice about practical issues too. How easy is it for Abductor to obtain a new passport for the children in Country X? Do children from Country X even need a passport to travel? Are there any steps that can be taken in Country X to protect your client’s position?

The above assessment will inform strategy. If you can be satisfied that in the event of an abduction there is a strong chance of a return order being made in Country X or an English return order being respected, then prevention is simply one part of a wider strategy. However, if you know that in practice Country X is never going to return the children to England (for example, if they are not a party to either Convention) then prevention is, in effect, the last line of defence and will need to be an absolute priority for your client.

Action

As indicated above, a prohibited steps order preventing a parent from removing a child from the jurisdiction is often not worth the paper on which it is written. Practitioners should focus on practical steps to prevent removal, with the most obvious area being the control of travel documents. If the Abductor does not have valid travel documentation for the children or for themselves, it will be much harder (but not impossible) for them to take the children abroad. In most cases that will mean passports, but depending on the identity of Country X this may also mean ID cards and other official documents. Some states permit individuals to travel on expired passports in certain circumstances, so care should be taken in this regard. Practitioners must be thorough and ensure that all relevant documents are covered.

These documents should be held by solicitors where possible or by the Tipstaff. If the Abductor has control of the passports and will not relinquish them voluntarily, then an order for their seizure should be sought under s37 of the Family Law Act 1986. Such orders can be made in respect of foreign passports as well as British passports (see Re A-K (Foreign Passport: Jurisdiction) [1997] 2 FLR 569).

Once the current travel documents are safe, the focus can turn to preventing further travel documents from being issued. The English Court has the power to make orders preventing HM Passport Office from issuing further passports (see paras 4.9 and 4.10 of PD 12F). However, the English Court cannot stop Country X from doing so. A request can be made to the foreign embassy or consulate of Country X to ask them not to issue replacement passports or travel documentation in respect of a child, or at least to establish whether they have a practice of doing so. Whilst such bodies cannot be compelled not to issue travel documents, they may be amenable to requests. Some countries require consent of both parents in any event and some will add this requirement if put on notice by one parent. Others accept applications for their own internal alert system. As indicated above, early research is key to ensure that all avenues are covered.

Another way of preventing an abduction is to put in place practical barriers. This will be fact specific. For example, if contact is supervised then it will be very difficult for the Abductor to take the children overseas (assuming a diligent and independent supervisor). In other circumstances, the Abductor may not have contact with the children at all and there are provisions in the FPR (eg FPR r 29.1) that can be used to keep the address of the children from being disclosed. The timing and location of any contact can also make it harder for the Abductor to remove the children or buy vital time if an abduction does take place. Agreeing to the children having contact with the Abductor at a time when there is a regular flight from a local airport to Country X, for example, may be foolish. Finally, depending on the age of the children it may be appropriate for them to have their own telephones and for location tracking applications to be installed on their phones as a precaution.

A final layer of protection is deterrence. The most common deterrent is requiring the Abductor to put up a bond which would be forfeited if the child is abducted. In many cases, a sizeable bond will be sufficient to prevent an abduction, however caution must be urged in ‘big money’ cases where an abducting parent may be willing to lose several millions of pounds in order to take the children overseas.

(2) Imminent risk

If it becomes apparent that an abduction might be taking place imminently, there are a number of steps that can be taken to reduce the risk of abduction and best protect the child:

Instruct solicitors

The concerned parent should contact specialist solicitors immediately, if they have not done so already. If solicitors are apprised of the situation before it occurs, they will be better prepared to spring into action if the abduction does take place. The parent should give them the information they might need to take immediate precautions (see para 4.7 of PD 12F), including the child’s name, date of birth, nationality, a description of their physical appearance (a photo is helpful, as are copies of passports), details of the Abductor, the likely destination, time/place of embarkation (if known) etc.

Subject to funds, the concerned parent may wish to instruct their solicitors to start working on draft applications or statements. Do as much work in advance as possible so as to free up valuable time if the abduction does take place.

Port alerts

Practitioners should discuss with the concerned parent whether to apply for a port alert order. This is relevant only at the point where the risk of removal is both ‘real’ and ‘imminent’, as opposed to a hypothetical eventuality (such as with a prohibited steps order). If the order is granted, the police will place the child on a child abduction warning list and an all ports warning will be implemented, which will alert all points of departure from the UK, including ports and airports. Private airfields may be able to avoid detection, so special care should be taken in this regard, but regardless port alerts do remain one of the best ways of preventing imminent abduction. A port alert order will, by default, last 28 days, but in practice the court can order that it last for longer.

Practitioners should also discuss with the concerned parent whether it would be more effective to go to the police directly for a port alert. Under the Child Abduction Act 1984, the police can issue standalone port alerts without involvement of the court where the child is under the age of 16 and where there is a ‘real’ and ‘imminent’ risk that the child is to be abducted (considered to be within 24 to 48 hours). The concerned parent and/or solicitors would need to seek the assistance of their local police station and furnish them with the information given to their solicitors at mentioned above. They should keep in mind that a police-enforced port alert will only stand for 28 days, and the matter will then usually need to be heard at court if an extension is sought. However, in an emergency, contacting the police may well be a quicker way of obtaining a port alert in the first instance. Practitioners should be aware that if a port alert order is made by the court or from the police directly, they will need to obtain a ‘PNC’ number for the child from the police before they can put the name of the child on the child abduction warning list. The police will only provide a PNC number if they have been personally served with the sealed court order containing the port alert. The solicitor will need to instruct a process server in advance in readiness for the day of the court hearing and request a swift turnaround of the sealed order from the court, so that the port alert can be implemented as soon as possible. Otherwise, it may be too late to have any effect.

Location and collection orders

If the children are with the Abductor then consider making an application for a location order or a collection order. A location order is an order that allows the Tipstaff to locate the children (by serving the order on any person or organisation who they reasonably believe may know the child’s whereabouts, who are then compelled to divulge any such information). This order also allows the Tipstaff to seize documents (including passports).

A collection order includes everything in a location order and also allows the Tipstaff to collect the children and place them back in the care of the concerned parent (or any other third party as appropriate). The applicant must be able to explain clearly to the court where the Tipstaff are to take the child after the collection. As should be apparent, this is a draconian remedy and will only be ordered as a last resort. However, if the Abductor has the children with them but may still be in the jurisdiction, then it is one of the most effective ways of securing the return of the children.

(3) After the event

Timing

If the Abductor does manage to successfully remove the child from the jurisdiction, then time is of the essence. The left-behind parent must ring the police straight away. There is little available recourse immediately after an abduction, but the police should be informed so they can take any relevant steps to ascertain the child’s whereabouts as soon as possible (in England or otherwise, as this information will be useful regardless).

If the left-behind parent has not involved solicitors up to this point, they will certainly need to at this stage. Securing the return of a child after an abduction is a difficult process and requires an application for a return order to be made to the Court, which differs depending on whether the country the child has been taken to is a signatory of the 1980 Hague Convention or not. Such applications need to be made as soon as possible after the abduction, so solicitors will need to be instructed swiftly. When completing the applications, provide as much information as possible.

Be mindful of the ‘settlement’ defence under article 12 of the 1980 Hague Convention, which is a defence the Abductor can plead if a year has passed since the abduction and if the child is settled in their new environment. Whilst the defence does not automatically prevent a return after a year, it is best to avoid this issue altogether by ensuring that the 1980 Hague proceedings are brought as swiftly as possible.

Responding to the abduction

The left-behind parent and/or their solicitor must not consent or acquiesce to the abduction, either orally or in writing. If the Abductor can show that consent was given before or after the abduction, this may be fatal to any application for a return order by operation of the defence under Art 13 of the 1980 Hague Convention. Case law makes clear that the consent should be clear and unequivocal and relate to the permanent removal of a child. This is a high threshold and requires consent of a nature that is unlikely to be given accidentally.

However, not all countries apply the test to the same level and there is no requirement for the consent to be in writing, meaning there is plenty of scope for this defence to be abused. The left-behind parent should not give the Abductor any opportunity to run this defence (e.g. by consenting to the children staying in Country X for a few weeks before returning). Instead, they should take active steps to build up evidence showing their objection to the removal (such as emails, letters, calls etc) in order to counter any claim of an Art 13 defence.

Choice of remedy

The left-behind parent should be strategic about how they pursue a return of the children, especially in cases where legal funding is an issue. There are subtle differences between the 1980 and 1996 Hague Conventions (especially as regard the ‘defences’ under the 1980 Hague Convention and the grounds for refusal of recognition under the 1996 Hague Convention) and it may be that the prospects of success are greater under one than the other. The left behind parent should also be aware of the possibility of extensive litigation in Country X. If there is going to be a lot of effort required to, say, enforce an English law order in Country X under the 1996 Hague Convention, then the left behind parent may be better off conserving their funds and energies for that instead of seeking further (possibly unnecessary) orders from the English Court. Although the left-behind parent may be eligible for legal aid in England, they will need to consider how the proceedings overseas are funded (although if a security bond has been sought, as advised above, then once forfeited this can be used as a ‘fighting fund’).

Practical steps

Practitioners should think about other steps that can be taken to secure the return of the child outside of the abduction proceedings. If the Abductor is a high-profile individual, then media pressure may be one way of procuring a return outside of the court route. However, practitioners should bear in mind any potential reporting restrictions where there are existing child proceedings. It is possible to ask the court to issue information to the media itself.

If there are other proceedings ongoing (eg financial proceedings) think about how they can be used to apply pressure. If there are other things ‘on the table’, then all-issues mediation can be a way to unlock matters and find a way forward that results in the return of the children. Whilst mediating in the context of abduction can seem like anathema and should be approached with caution, in certain cases it can work and may be one of the few options available. A specialised mediation scheme (the Child Abduction Mediation Scheme, operated by Reunite) exists and should be considered. Caution must be noted, however, as although mediation privilege exists under English law it may not in Country X and so the left-behind parent must be very careful not to say anything that could form the basis of an Art 13 defence. It would be sensible for there to be a written memorandum prepared prior to the mediation in which the Abductor acknowledges that nothing said in that context can amount to consent or acquiescence.

Conclusion

In this complex and high stakes area of litigation, practitioners are dealing with a legal framework which does not always work as intended. There are likely to be significant holes in the legal protections available to a concerned parent. Practitioners must undertake an extensive analysis of the facts in order to ascertain exactly how big these holes are and then be proactive in plugging those holes. In many cases, that will mean putting in place extensive preventative measures (both legal and practical) to prevent an abduction, as in the vast majority of cases it is easier to prevent an abduction than it is to reverse one.

This article was first published in the June edition of Family Law Journal (subscription required).